Court of Appeals Opinions

Format: 12/19/2014
Format: 12/19/2014
Elizabeth B. Turner v. Selina C. Gaviria
W2014-01087-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert L. Childers

This is the second appeal of this case involving enforcement of an oral loan agreement. Appellant appeals the judgment entered against her. Because the appellate record contains no transcript or statement of the evidence pursuant to Tennessee Rule of Appellate Procedure 24, we conclude that the findings made by the trial court in support of its conclusions of law were based upon sufficient evidence. Affirmed and remanded.

Shelby County Court of Appeals 12/17/14
Kem Ralph, et al. v. Scruggs Farm Supply LLC, et al.
W2014-00841-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge William C. Cole

This consolidated appeal stems from the attempted foreclosure of real property in Tipton and Haywood County. In commencing the present case, Plaintiffs filed complaints in Chancery Court in both Tipton and Haywood County seeking to enjoin foreclosure and to obtain an accounting of the financial transactions between them and Defendants. Both trial judges found that Plaintiffs’ claims were barred by the doctrine of res judicata. We affirm.

Tipton County Court of Appeals 12/17/14
Elm Children's Educational Trust v. Wells Fargo Bank, N.A.
E2013-02482-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Harold Wimberly

This Court entered an order in September of 2014 directing ELM Children’s Educational Trust (“the Trust”) to show good cause why this appeal should not be dismissed for lack of jurisdiction because the Notice of Appeal was signed by a non-attorney, non-party. The Trust failed to show good cause. We hold that a non-attorney trustee may not represent a purportedly pro se trust. As such, the Notice of Appeal signed by the non-attorney trustee was insufficient to initiate an appeal on behalf of the Trust. This appeal, therefore, is dismissed for lack of jurisdiction.

Knox County Court of Appeals 12/17/14
Channin S. Hughes v. Norman T. Hughes
M2013-01558-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Robbie T. Beal

This case involves a child custody dispute between two parents in the midst of a divorce proceeding with an unusual procedural history. After considering all the evidence presented during the divorce trial, the trial judge orally ruled that the mother would be designated the primary residential parent. About two weeks later, prior to the entry of any written order, the father filed a motion to reopen the proof or, in the alternative, to reconsider the ruling, seeking to present additional evidence about facts that occurred after the final hearing. The trial court denied the motion but instructed the father to present the additional facts via a petition to modify.  The father then filed a petition to modify the primary residential parent designation. After an evidentiary hearing, the trial judge dismissed the father’s petition to modify, finding that the facts presented did not “amount to a change of circumstance so great as to remove custody from the Mother.” Thereafter, the trial court entered the final decree of divorce and parenting plan from the divorce trial.  Father timely filed separate notices of appeal from these orders. We affirm.

Hickman County Court of Appeals 12/16/14
In Re: Camryne B.
M2014-00801-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Andrew Jackson

The trial court granted grandparent visitation based in large part on the asserted need to maintain a relationship between the grandchild and her half-sister (who had been adopted by grandmother). Parents opposed the grandchild’s visitation with her grandparents. The trial court made no finding that cessation of the relationship between the grandparents and the grandchild presented a danger of substantial harm to the child. In accordance with Tenn. Code Ann. § 36-6-306, we reverse.

Montgomery County Court of Appeals 12/16/14
In Re: Lyric J.
M2014-00806-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Charles K. Smith

This appeal arises from the trial court’s decision to terminate Father’s parental rights to his daughter (“Child”). Father lives in California and was not present for Child’s birth. Mother died two days after giving birth, and Mother’s mother (“Grandmother”) received temporary custody of Child because Father had not been declared the legal father. The final custody hearing granted custody to Grandmother and Father filed an appeal of the custody order. Grandmotherfiled a petition to terminate Father’s parental rights and adopt Child,and Father filed a counter petition to establish paternity and request custody. The court terminated Father’s parental rights based on its findings that Father willfully abandoned Child and that terminating Father’s parental rights and permitting adoption by Grandmother were in Child’s best interest. We find that it has not been established by clear and convincing evidence that Father’s failure to visit and support was willful; therefore, the judgment of the Smith County Chancery Court is reversed and the case is remanded for further proceedings consistent with this opinion.

Smith County Court of Appeals 12/16/14
Robert Greer Morris v. Patti Deakins Morris
E2013-02581-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey Hollingsworth

This is a divorce case in which Appellant/Wife appeals the trial court’s denial of her request for alimony and reimbursement of her medical bills. Discerning no error, we affirm and remand.

Hamilton County Court of Appeals 12/16/14
In Re Jocelyn L.
E2013-02650-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor William Lantrip

The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Anderson County (“the Juvenile Court”) seeking to have the minor child Jocelyn L. (“the Child”) found dependent and neglected. The Child’s father, James L. (“Father”), was alleged to have sexually abused the Child. The Juvenile Court entered a restraining order against Father. While both Father and the Child’s mother, Amanda L. (“Mother”), were named respondents in DCS’s petition, Mother was named only so as to require her to uphold the restraining order against Father. After a hearing, the Juvenile Court found that the evidence on the allegations against Father did not rise to the level of clear and convincing. The Juvenile Court dismissed the petition. DCS did not appeal. Mother, however, appealed to the Circuit Court for Anderson County (“the Circuit Court”) for a trial de novo. The Circuit Court found that Mother lacked standing to appeal and dismissed her appeal. Mother now appeals to this Court. We hold that Mother was not an aggrieved party by the Juvenile Court’s order dismissing DCS’s petition and, therefore, lacked standing to
appeal to the Circuit Court. We affirm the judgment of the Circuit Court.

Anderson County Court of Appeals 12/16/14
In Re Chelsia J. et al.
E2014-00632-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

This is a termination of parental rights case, focusing on Chelsia J. and Jared J., the minor children (“Children”) of Fleesha J. (“Mother”) and Mark F. (“Father”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on April 28, 2011, upon investigation of the Children’s exposure to controlled substances in the parents’ home. On March 21, 2012, DCS filed a petition to terminate the parental rights of both parents. Following a bench trial conducted over the course of four days spanning more than a year’s time, the trial court found that grounds existed to terminate the parental rights of both parents upon its finding, by clear and convincing evidence, that (1) the parents abandoned the Children by failing to provide a suitable home, (2) the parents abandoned the Children by engaging in conduct prior to incarceration that exhibited wanton disregard for the Children’s welfare, (3) the parents failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, and (4) the conditions leading to the Children’s removal from the home persisted. At that time, however, the court denied the petition based upon its finding that termination was not in the best interest of the Children. DCS subsequently filed a motion to alter or amend the judgment. Following a subsequent hearing, the trial court granted the motion to alter or amend the judgment and terminated the parental rights of both parents upon its finding, by clear and convincing evidence, that termination was in the best interest of the Children. Mother has appealed. 2 We reverse the trial court’s finding that Mother abandoned the Children by engaging in conduct prior to
incarceration that exhibited wanton disregard for the Children’s welfare. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s parental rights.

Campbell County Court of Appeals 12/16/14
Corey Blocker v. Nashville Rescue Mission
M2013-00936-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

In this action for conversion of personal property, Plaintiff contends the defendant, the Nashville Rescue Mission,is liable for throwing away his personal possessions that he stored in a locker at the Mission. Relying on the terms and conditions of a written “Locker Use Guidelines and Agreement,” the Mission insists it is not liable because it disposed of the property as authorized by Plaintiff. The Mission submitted interrogatories and requests for admissions to which Plaintiff objected generally. The Mission then obtained an order compelling Plaintiff to respond to the discovery as required by the rules of civil procedure. When Plaintiff responded, but not as required by the rules of civil procedure, the Mission filed a motion to have the requests for admissions deemed admitted; the trial court granted the motion. Thereafter, the Mission filed a motion for summary judgment relying on the admissions and the relevant terms and conditions of the Locker Use Guidelines and Agreement. Based upon the Agreement and other facts that were deemed admitted, the court concluded that summary judgment was appropriate as Plaintiff could not establish an essential element of his claim for conversion. Finding no error, we affirm.

Davidson County Court of Appeals 12/15/14
In Re: Kaiden T.
M2014-00423-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement
Trial Court Judge: Chancellor Ronald Thurman

Mother appeals the termination of her parental rights contending the evidence was insufficient to prove any ground or that it was in the child’s best interest to terminate her parental rights. The trial court found that the petitioners, the father and step-mother, proved two grounds of abandonment, failure to support and failure to visit the child, pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i), and that termination of Mother’s rights was in the best interest of the child, pursuant to Tenn. Code Ann. §§ 36-1-113(c)(2) and (i). We have determined the evidence is sufficient to prove both grounds of abandonment; therefore, we affirm the trial court’s findings on both of these issues. However, we must remand the issue of the child’s best interest, due to the lack of specific findings of fact as mandated by Tenn. Code Ann. § 36-1-113(k). Therefore, we reverse and remand with instructions for the trial court to provide specific findings of fact concerning whether termination of Mother’s parental rights is in the best interest of the child and to enter judgment consistent with its findings.

Overton County Court of Appeals 12/15/14
Gene Lovelace Enterprises, LLC et al. v. City of Knoxville
E2013-01584-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Harold Wimberly

This case involves the enforceability of an ordinance enacted by the City of Knoxville to impose licensing requirements for owners and employees of sexually oriented businesses. Plaintiffs, Gene Lovelace Enterprises, LLC a/k/a Last Chance Theatre & Musical Club 2000 at Alcoa Highway and Eugene Lovelace d/b/a Bambi’s, filed this action 1 against the City, seeking a judgment declaring the ordinance unconstitutional and an injunction prohibiting enforcement. A similar action was subsequently filed by plaintiffs, Business Financial Services of Knoxville, Inc. d/b/a West Knoxville News and Katch One, Inc. d/b/a Katch One Lounge. The two cases were consolidated. The City filed a motion for summary judgment, asserting that the City Council had appropriately enacted the ordinance to combat negative secondary effects caused by sexually oriented businesses. The plaintiffs presented evidence that there were no negative secondary effects associated with such businesses in the Knoxville area, including expert opinions and a study based on empirical data from the relevant locality. The trial court granted summary judgment to the City, finding that “relevant authorities cited by the City establish that the ordinance in question is of a type which may be validly and constitutionally enacted by a municipality such as defendant.” Gene Lovelace Enterprises, LLC and Bambi’s LLC have appealed that ruling. We reverse the trial court’s grant of summary judgment to the City and remand the case for further proceedings

Knox County Court of Appeals 12/15/14
David W. Hamilton et. al. v. Abercrombie Radiological Consultants, Inc. et. al.
E2014-00433-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Dale C. Workman

This is a health care liability action, arising from the death of Decedent, David Hamilton. Decedent’s surviving spouse, Donna Hamilton (Appellant), filed this action against Appellees, Abercrombie Radiological Consultants, Inc. and Dr. Donna K. Culhane. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121 et seq. Specifically, the Appellees challenged whether the medical release provided with the pre-suit notice letter was compliant with the Health Information Portability and Accountability Act (“HIPAA”). The trial court agreed with Appellees and dismissed the action with prejudice. Appellant timely appealed. We reverse and remand the matter to the trial court.

Knox County Court of Appeals 12/15/14
Farmers Mutual of Tennessee v. Jennifer Atkins
E2014-00554-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Jerri S. Bryant

The trial court granted summary judgment to the insurance company on the issue of whether the insured’s failure to submit to an Examination Under Oath precluded her recovery. Because material factual disputes exist, we reverse.

Monroe County Court of Appeals 12/15/14
Maria Beth Reynolds v. William Reynolds
M2013-01912-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement
Trial Court Judge: Judge Phillip R. Robinson

Wife filed a criminal contempt petition against Husband alleging seven violations of the order of protection she obtained against him. The trial court found Husband guilty of six of the seven counts of criminal contempt and, after considering each count of contempt individually, sentenced him to a total of 28 days in jail to be served consecutively. Husband challenges five of the six findings of criminal contempt and the sentence. Husband also challenges the exclusion of his witness based on her violation of Tennessee Rule of Evidence 615. We have determined the trial court did not abuse its discretion in excluding Husband’s witness for violating Rule 615. We have also determined the evidence supports the finding that Husband violated the order of protection on each of the five counts he challenges and that the sentence imposed is appropriate. Therefore, we affirm the trial court in all aspects.

Davidson County Court of Appeals 12/12/14
In Re: Josie A., et al
M2014-00442-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Wayne C. Shelton

Father’s parental rights to his three children were terminated on the grounds of abandonment by failure to visit, failure to support, and failure to provide a suitable home, as well as persistence of the conditions that led to the removal of the children. He appeals, contending that there is not clear and convincing evidence sufficient to terminate his parental rights. Finding no error in the judgment of the trial court, we affirm.

Montgomery County Court of Appeals 12/12/14
David Jones v. Mortgage Menders, LLC, et al
M2014-00140-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal involves several claims relating to the sale and refinancing of Plaintiff’s two properties. When Plaintiff defaulted on the mortgages, Mortgage Menders, LLC offered to purchase the properties,fulfill the mortgage indebtedness, refurbish the properties for resale, and remit half of the profits when the properties sold. Mortgage Menders, LLC borrowed money from Defendant Hazlewood to accomplish the terms of the agreement. Defendant Hazlewood also served as an escrow and closing agent for two later transactions involving the properties. When Plaintiff failed to receive any portion of the proceeds relating to the sale of one of the properties, he filed suit for breach of contract, fraud, and civil conspiracy against each of the parties involved. Defendant Hazlewood filed a motion for summary judgment, asserting that he was entitled to judgment as a matter of law. The trial court partially granted the motion for summary judgment, finding that Defendant Hazlewood was not a party to the contract and that he had not participated in a civil conspiracy. Years later, the court dismissed the remainder of the case for failure to prosecute. Plaintiff appeals. The decision of the trial court is affirmed in part and reversed in part. We remand the case for proceedings consistent with this opinion.

Davidson County Court of Appeals 12/12/14
Damon Tatum v. Mercedeas Tatum
W2013-02112-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jerry Stokes

The trial court denied Defendant Mother’s motion to recuse in this post-divorce dispute. We affirm.

Shelby County Court of Appeals 12/12/14
Gary Haiser Et Al. v. Michael Haines Et Al.
E2013-02350-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Ronald Thurman

This appeal arises from an internal conflict in a planned community. A group of property owners (“Plaintiffs”) sued another group of property owners (“Defendants”) 1 in the Chancery Court for Cumberland County (“the Trial Court”). Both groups contested which was the legitimate Board of Directors for the community association. Plaintiffs sought, among other things, declaratory relief as to the rights and responsibilities of the parties. Plaintiffs filed a motion for class action certification. The Trial Court, finding that Plaintiffs had failed to establish the requirements of typicality and adequacy of representation, denied Plaintiffs’ request for class certification. Plaintiffs appeal the denial of class certification. Finding no abuse of discretion, we affirm the Trial Court.

Cumberland County Court of Appeals 12/12/14
Jimmy W. Bilbo, Et Al. v. Ocoee Place Condominium Homeowners Association, Et Al.
E2013-02535-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jon Kerry Blackwood

Jimmy W. Bilbo and Mildred D. Bilbo (“Plaintiffs”) sued Ocoee Place Condominium Homeowners Association (“Defendant”) for, among other things, negligent 1 construction which allegedly caused flooding that damaged Plaintiffs’ property. Defendant filed a motion for summary judgment alleging, in part, that Defendant did not own the relevant real property, that Defendant exercised no input or control over the construction, and that Plaintiffs’ action was barred by the statute of limitations and the statute of repose. The Circuit Court for Bradley County (“the Trial Court”) granted Defendant’s motion for summary judgment. Plaintiffs filed a motion to alter or amend, which the Trial Court denied. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in refusing to alter or amend the grant of summary judgment pursuant to Tenn. R. Civ. P. 54.02 or Tenn. R. Civ. P. 60.02. We find no abuse of discretion in the Trial Court’s denial of Plaintiffs’ Tenn. R. Civ. P. 54.02 or 60.02 motion, and we affirm.

Bradley County Court of Appeals 12/12/14
State ex rel. Department of Transportation v. William H. Thomas, Jr.
W2013-02082-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Walter L. Evans

This is the second appeal of this case involving the Appellee’s construction of a billboard without the required state permit. In the first appeal, this Court held that the trial court did not have subject-matter jurisdiction to adjudicate any of Appellee’s purported defenses or counterclaims raised in response to the State of Tennessee’s petition for injunctive relief. Accordingly, we held that the trial court’s order was “void and of no effect.” Upon remand, the State sought restitution for amounts paid to Appellee pursuant to the void order. In contravention of the law of the case, the trial court awarded Appellant only part of its restitution, and ruled in Appellee’s favor on his First Amendment defense to the State’s petition. Accordingly, we reverse the trial court’s order and remand the case with mandated instructions.

Shelby County Court of Appeals 12/11/14
In Re Conservatorship of Michael S. Starnes
W2013-02614-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kathleen N. Gomes

This is a conservatorship case. Appellant, the only child of Appellee, sought a conservatorship over Appellee after Appellee suffered a stroke. Appellee filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss the petition. The trial court, in its memorandum opinion, denied the Appellee’s motion to dismiss, finding Appellant’s petition to appoint a conservator “legally sufficient.” In that same opinion, the trial court considered matters outside the pleadings, converted the motion to dismiss to a motion for summary judgment, and sua sponte granted summary judgment in favor of Appellee. Appellant appeals. Because Appellant was not, as required under Tennessee Rule of Civil Procedure 12.02, “given reasonable opportunity to present all material made pertinent to [the] motion by Rule 56,” we vacate and remand.

Shelby County Court of Appeals 12/10/14
Charlotte J. Cartwright, et al. v. DMC-Memphis Inc. d/b/a Delta Medical Center, et al.
W2013-01614-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John R. McCarroll, Jr.

This appeal requires consideration of the interplay between the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 and Tennessee’s savings statute, Tennessee Code Annotated § 28-1-105. In the instant case, Plaintiff re-filed a medical malpractice action within one year of a previous voluntary non-suit. Defendants moved to dismiss the re-filed action on the basis that the pre-suit notice provided incident to the initial lawsuit was deficient. They argued that the failure to provide the required notice in the first lawsuit meant Plaintiff’s original action was not properly commenced and therefore failed to toll the statute of limitations. The trial court agreed, determined that the second lawsuit was filed outside of the applicable limitation period, and dismissed Plaintiff’s claims. We reverse.

Shelby County Court of Appeals 12/09/14
Buddy J. Webb, et al. v. Brent Douglas, et al.
W2014-00299-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ben H. Cantrell

Landowners, whose properties abut a gravel road that  crosses over the land of another, claim the right to use that road for ingress and egress.  The trial court found the gravel road was formerly a public road, but that the road ceased being a public road at some point.  Once the road ceased being a public road, the trial court found the landowners whose land abutted the road had a permanent easement and right to use the road for ingress and egress purposes.  The landowners over whose property the road crosses appealed.  We affirm the trial court’s judgment.

Benton County Court of Appeals 12/09/14
Lloyd L. Meyers v. Farmers Aid Association of Loudon County, Tennessee
E2013-02585-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Russell E. Simmons, Jr.

This is an interlocutory appeal from the denial of Appellant insurer’s motion for summary judgment in an action on a homeowner’s policy that contained a contractual one-year statute of limitations. The Appellee insured filed suit eighteen months after the loss occurred. In the trial court, the Appellant insurer moved for summary judgment, arguing that the one-year statute of limitations in the Appellee insured’s policy was a bar to his action. The trial court agreed with the Appellee’s interpretation of the policy provisions and denied the motion for summary judgment. This court granted the Appellant’s application for interlocutory appeal. Following our review, we reverse the trial court’s decision and remand the case for entry of summary judgment in favor of Appellant.

Loudon County Court of Appeals 12/09/14